Police tactics based on systematic racial discrimination are wrong, NYPD commissioner Ray Kelly seems to have pursued such tactics, and as such I would not be pleased to see him appointed to federal office. So I agree with Conor Friedersdorf that it reflects poorly on Senator Chuck Schumer that he’s pushing for Kelly to be Secretary of Homeland Security. And since a big part of Friedersdorf’s schtick is overblown accusations of liberal hypocrisy the fact that Schumer has this bad idea becomes “Prominent Democrats Are Now Comfortable With Racial and Ethnic Profiling.”
So here’s a thing that happened a little while back. Judge Richard Berman of the Southern District of New York decided to take senior status on September 11, 2011*. When federal district court vacancies arise in a state represented in congress by senators of the president’s own party, those senators are typically given a great deal of deference in terms of who the president ought to nominate. This is particularly true in the case of Schumer, who serves on the Senate’s Judiciary Committee. Schumer recommended Nelson Román, a New York State judge with a bio seemingly copied from The West Wing’s Justice Mendoza—a Puerto Rican kid from the Bronx who served for seven years as an NYPD officer before obtaining a JD from Brooklyn Law School, clerking, and then working his way up the state judicial hierarchy. By the time Schumer recommended his appointment, he was a member of the First Appelate Division of the New York State Supreme Court.
Schumer recommended Roman in April of 2012. Then in July of 2012, Roman issued a judicial ruling that brought a halt to stop-and-frisk policing in New York City. That led the NY Daily News editorial page to pronounce Roman’s federal judicial aspirations dead. But Schumer did not back down, and Obama tapped Roman for the job for which both he and Schumer got another Daily News scolding. But of course this was the fall of an election year, so Senate Republicans refused to hold a vote in late September or in October or in early November. Then Obama got reelected, but Roman didn’t get a vote during the lame-duck session. That killed Roman’s nomination, but come January Obama once again appointed him to the vacancy. On May 9, 2013 he finally got his vote on the floor of the Senate and he was confirmed 97-0. And thus thanks in part to the hard work and political guts of Chuck Schumer did a civil libertarian hero get a seat on the federal bench, despite the best efforts of the local populist news media and the Republican Party.
Does that make Schumer a civil liberties hero? No. If you actually know much about Schumer you’d know he really distinguishes himself as one of the least civil libertarian major figures in the Democratic Party. He’s part of a cohort of white Democrats from big liberal cities who made their political bones during the high-crime 1980s and early 1990s by specifically distinguishing themselves as pro-cop, “tough on crime,” figures and he’s carried that political profile with him forward into the Senate and into a very different time in American urban life. It is no coincidence that Senator Dianne Feinstein shares a very similar career trajectory and ideological profile (it’s superficially paradoxical that two of the most aggressively authoritarian Democratic Senators are from San Francisco and Brooklyn, but there’s a reason for it). But Schumer did do this one thing, at least. To be maximally ungenerous to Schumer, he did it because he is embedded in a New York State political coalition that heavily depends on the votes of people of Puerto Rican origin so he needs to do something or other to promote the careers of prominent Puerto Rican Democrats and it just so happens that you can’t find any well-qualified Puerto Rican jurists who endorse systematic racial discrimination. Maybe if you could have found a judge like that, Schumer would have picked him instead. But of course it’s not a coincidence that well-qualified Puerto Rican jurists are unlikely to endorse systematic racial discrimination. What we see here is an example of how when you empower the political coalition that includes racial and ethnic minority groups, you end up promoting the interests of racial and ethnic minority groups even in cases when the leaders of the coalition don’t share their priorities because politics is complicated. And though Schumer certainly is a prominent Democrat, he is an outlier in the party on this particular topic and (fortunately) the Democrats currently running for mayor in New York come from a different political context and don’t want Kelly to keep his job as commissioner which is precisely why Schumer is casting about to give him another gig.
Meanwhile, though Schumer is personally bad on civil liberties in a municipal policing context he is personally taking the lead in securing amnesty for millions of otherwise law-abiding people who’ve violated America’s immigration laws while libertarian hero Rand Paul calls for increased militarization of the border and a more intrusive domestic surveillance system to help “track visitors still in the country because of visa overstays.”
I mention this not-so-Moneybox subject because Friedersdorf and I have had some exchanges on twitter recently where I’ve expressed frustration with his writings on these kind of issues. And to me it comes back to this. I think he and I are close on the merits of the issues at hand. But he has a hyperactive hypocrisy detector combined with a dogmatic and highly tribal opposition to political tribalism that creates blindness about the actual modalities of political change. While liberals may hope that Paul comes to have more influence over GOP foreign policy and Schumer less influence over Democratic Party views on policing, people who understand how representative government works are going to remain fundamentally comfortable with our basic partisan commitments and there’s nothing even a little bit hypocritical about it.
[full disclosure, way back in the summer of 2001 I was an intern in Schumer’s office]
* Correction: This post initially stated that Berman took senior status in 2001 rather than 2011.